New South Wales Court of Appeal CITATION : The Nominal Defendant v Richards & Anor [2001] NSWCA 367 FILE NUMBER(S) : CA 40014/01 HEARING DATE(S) : 08/10/01 JUDGMENT DATE : 16 October 2001 PARTIES : The Nominal Defendant v Toni Richards & Rodney Craig Busbridge JUDGMENT OF : Mason P at 1; Hodgson JA at 2; Ipp AJA at 3 LOWER COURT JURISDICTION : District Court LOWER COURT DC 816/99 FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER : H J Halligan/J H Gibson (Appellant) COUNSEL : No Appearance (Respondent 1) R Royle (Respondent 2) D McLachlan SOLICITORS : Garard Malouf & Partners (Respondent 1) Blake Dawson Waldron (Respondent 2) CATCHWORDS : MOTOR ACCIDENTS - Motor Accidents Act 1988, s 28 - whether trial judge erred in concluding that identity of vehicle not established. ND LEGISLATION CITED : Motor Accidents Act 1988 DECISION : (1) The Nominal Defendant to re-list the appeal after having given notice of the application for the amendment to the Notice of Appeal to the first respondent and serving a copy of these reasons upon the first respondent (2) At the resumed hearing the application for amendment to the Notice of Appeal will be determined and argument can take place in first respondent's presence as to the orders that should be made in regard to the resolution of the appeal (including orders, if any, relating to restitution of any monies paid pending the new trial) in the light of these reasons (3) If parties are unable to agree on orders to be made they should bring in short minutes of orders within 21 days. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40014/01 DC 816/99 MASON P HODGSON JA IPP AJA Tuesday, 16 October 2001 THE NOMINAL DEFENDANT v TONI RICHARDS & RODNEY CRAIG BUSBRIDGE Judgment 1 MASON P: I agree with Ipp AJA. 2 HODGSON JA: I agree with Ipp AJA. 3 IPP AJA: On 18 July 1996 the first respondent, Ms Richards, was the driver of a motor vehicle in Coreen Avenue, Kingswood Park. While her vehicle was stationary, another vehicle collided with its rear end and immediately thereafter drove away from the scene. 4 Ms Richards noticed that the other vehicle involved in the collision was a blue Ford Falcon, model XD. She looked at its registration number and saw that it commenced with the letters QKR followed by three numbers that she thought were a nine, a four and a two. Thus, she thought that the registration number was QKR 942. She did not see anything of the driver. 5 Ms Richards was injured in the collision and retained solicitors to assist her in bringing proceedings for the recovery of the damages she had thereby sustained. She began to try to locate the vehicle that had collided with her. 6 On 27 July 1997 Ms Richards observed a blue Ford Falcon in a carpark at a leagues club. She thought that the car was the one that had collided with her vehicle. On 27 March 1998 she again saw the blue Ford and took seven photographs of it. The photographs showed that the registration number of the car was QKR 928. They also showed that the bonnet and guard on the driver's side had been painted with undercoat paint. According to Ms Richards, the car looked as if it had been repaired in those areas. She thereafter observed the vehicle on three other occasions. 7 On 7 July 1999 Ms Richards commenced legal proceedings for the recovery of her damages. 8 The first defendant in these proceedings was the Nominal Defendant who was sued pursuant to the relevant legislation then in force, namely, s 28 of the Motor Accidents Act 1988. This section provided: "28(1) An action for the recovery of damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle on a public street in New South Wales may, if the identity of the vehicle cannot after due inquiry and search be established, be brought against the Nominal Defendant. 28(2) The inquiry or search may be proved orally or by affidavit of the person who made the inquiry or search. 28(3) In respect of any such action, the Nominal Defendant shall be liable as if it were the owner or driver of the motor vehicle". 9 In Ms Richards' statement of claim she alleged that the identity of the driver of the motor vehicle that collided with her vehicle could not be established "after due inquiry and search". She further alleged in the statement of claim that, after making inquiries at the scene of the accident, she was able "to identify the unidentified vehicle as blue Ford XD or XE model with registration number QKR 942 or QKR 429". She also alleged that, in the course of driving around the vicinity of the accident, she "came across a blue XD/XE Ford which appeared to have had repairs carried out to the front of that vehicle and which displayed the registration number QKR 928". These allegations were presumably intended to support the proposition that the offending vehicle could not be identified. 10 In the alternative, Ms Richards sued Rodney Craig Busbridge as the second defendant. She alleged in her statement of claim that Mr Busbridge was "the owner of motor vehicle registration number QKR 928 which was the vehicle that collided into the rear of her car and subsequently left the scene of the accident". 11 Delaney DCJ, who was the trial judge, held that the identity of the offending vehicle, within the meaning of s 28(1) of the Motor Accidents Act, was not established. Accordingly, he held that the Nominal Defendant was liable under s 28 for Ms Richards' damages "as if it were the owner or driver of the motor vehicle". His Honour then awarded a verdict "on the question of liability" against the Nominal Defendant. Thereafter, a further hearing took place during which Delaney DCJ assessed the damages to be paid by the Nominal Defendant to Ms Richards. 12 The Nominal Defendant now appeals against the verdict that it is liable to Ms Richards for her damages. The Nominal Defendant argues that Delaney DCJ should have held that the identity of the vehicle that collided with Ms Richards was properly identified as being the Ford Falcon, registration QKR 928, which, according to the Nominal Defendant, was being driven by Mr Busbridge when the collision occurred. 13 The Nominal Defendant seeks orders that the verdict and judgment against it be set aside and a verdict and judgment be entered in favour of Ms Richards against Mr Busbridge. Although Ms Richards did not appear at the appeal (despite having been served with the Notice of Appeal) and made no claim for orders of the kind sought by the Nominal Defendant, this Court has power under Pt 51 r 22 of the Rules of the Supreme Court to make such orders. 14 The main argument advanced on the Nominal Defendant's behalf was directed at the reasoning process adopted by Delaney DCJ in concluding that the vehicle that collided with Ms Richards' vehicle had not been identified. In order that this argument can properly be understood it is necessary to refer to the evidence that was relevant to this issue. 15 The evidence in question can be divided into two categories. The first is evidence led by Ms Richards tending to identify Mr Busbridge as the driver of the vehicle that collided with Ms Richards' vehicle. The second is other evidence of identification. I shall first, briefly, describe the latter. 16 I have already referred to the evidence given by Ms Richards on this issue. Her testimony was supported by Mr Craig Stephen Last, who observed the collision in question. Mr Last said that the car that collided with Ms Richards' car was a Ford Falcon, XF model, painted blue. Later, he said that "it could be anything from an XD upwards" and remarked that he was not an expert on car makes and models. Mr Last said that he looked in his rear vision mirror and "caught a glimpse of the registration number" and saw that the registration number was "something like QKR". He said, " I know there was also a nine and a two in the numbers but that's all I could get". He said that after the collision the Ford Falcon "had extensive damage to the right hand guard, light, the bumper bar was dragging along the ground and bonnet damage". 17 Ms Richards also relied on the testimony of Mr Andrew Scott Wade. In February 1997 Mr Wade purchased a 1986 blue Ford Falcon XF sedan registration number QKR 928 for $2,000 at an "unofficial" car yard at Colyton where "people just put their cars … and sell them on weekends". He said that when he purchased the vehicle the bonnet and the guard on the driver's side of the car were painted black. This, it was submitted, indicated that those parts of the vehicle had been damaged and then repaired. Mr Wade was unable to recall the person from whom he bought the car. 18 Mr Wade said that the front of the XD model, and its lights, were square while those of the XF were rounded. The front grill on the two models also differed. The XD had a "big, black grill" whereas the XF had two flutes. The difference at the rear was simply that the rear tail lights of the XF, unlike those of the XD, were covered in mesh. Ms Richards and Mr Last observed both the front and rear of the blue Ford Falcon for very brief periods (less than a minute, each). It is understandable, given the brevity of their observation and the insignificant differences between the XD and the XF models, that they were uncertain as to which of the two models it was. 19 Ms Richards tendered a certificate of registration issued by the Roads and Traffic Authority that showed that on 18 July 1996 (the date of the accident) Mr Busbridge was the owner of a 1986 Ford vehicle, model FALC86D, registration number QKR 928. Ms Richards also tendered a form issued by the Roads and Traffic Authority that showed a transfer of registration of a Ford Falcon vehicle, registration number QKR 928, as having taken place on 10 February 1997. 20 Mr Busbridge himself said that he acquired the Ford Falcon QKR 928 early in 1995 and sold it for $2,000 (the same price at which the vehicle was purchased by Mr Wade) about a year later (before the collision). He said that he had never met Mr Wade and never parked the car at the lot in Colyton for purposes of sale. He denied that he was the driver of the vehicle that collided with Ms Richards' vehicle. Accordingly, Mr Busbridge's testimony was to the effect that, prior to the collision and before Mr Wade purchased the vehicle, he sold it to some unidentified person; further, he had no involvement in the collision. 21 The evidence relating to the identity of the vehicle, when considered without reference to the evidence relating to the identity of the driver of the offending vehicle, did not prove on a balance of probabilities that the vehicle that collided with Ms Richards' vehicle was the blue Ford Falcon registration number QKR 928. 22 Arithmetically, there were 48 vehicles capable of bearing the registration numbers QKR together with a nine and a two and some other number. 23 The fact that vehicle QKR 928 was a blue Ford falcon and its bonnet and guard had been painted and perhaps repaired did not prove that that vehicle had been involved in the collision with Ms Richards. Nor did that fact, coupled with the fact that there were only a possible 48 vehicles capable of bearing the registration numbers QKR together with a nine and a two and some other number, establish on a balance of probabilities that vehicle QKR 928 was the one that had collided with Ms Richards' vehicle. 24 Further, the fact that vehicle QKR 928 was registered in the name of Mr Busbridge at the date of the accident did not mean that he was the owner or the driver of the offending vehicle as at that date. On his evidence, some other person was then the owner and he was not the driver. 25 I now turn to the evidence adduced by Ms Richards that tended to identify Mr Busbridge as the driver of the vehicle that collided with Ms Richards' vehicle. 26 Mr Last testified that he saw the face of the driver of the blue Ford for a period of fifteen to twenty seconds. He said that the driver was a man in his mid-twenties of "slimish build", of "Australian" appearance, with dark shoulder length hair and a goatee beard. 27 On 24 May 2000, prior to giving evidence at an arbitration hearing concerning Ms Richards' action, Mr Last saw Mr Busbridge in the public area of the Parramatta Court House and recognised him as the driver of the offending vehicle. Mr Last said in this regard: "I didn't even realise that he had anything to do with this case. They just asked me if I seen the guy again and I pointed out yes I did". On this testimony, no person had asked Mr Last to point out the driver and the identification by him was spontaneous. 28 In the courtroom during the arbitration proceedings, Mr Last again identified Mr Busbridge as the driver of the vehicle. At the trial of the action Mr Last identified Mr Busbridge once more when the latter was called into the courtroom. 29 At the trial, counsel for Mr Busbridge tendered a photograph of Mr Busbridge. The photograph was never put to Mr Last. The photograph showed Mr Busbridge as having a goatee beard. 30 The resolution of the question whether or not Mr Busbridge was indeed the driver of the vehicle depended on the credibility of Mr Last and Mr Busbridge (albeit that the photograph of Mr Busbridge with a goatee beard tended fairly strongly to support Mr Last). Delaney DCJ, however, did not decide the question. 31 His Honour separated the evidence that directly related to the registration number of the offending vehicle from the evidence that related to the identity of Mr Busbridge. He focussed on the evidence concerning the registration number alone and said that he was not satisfied from that evidence that Ms Richards had proved on the balance of probabilities that the registration number of the vehicle photographed by her was in fact the registration number of the vehicle that had collided with her vehicle. He then proceeded: "Accordingly, on those findings, it is clear that whether or not Mr Busbridge was the person that was seen by Mr Last at the scene is of really not much assistance because he may have been driving some other vehicle and the vehicle, thereby, would still not be identified". 32 With respect to his Honour, it was of the utmost importance to decide whether or not Mr Busbridge was the person "that was seen by Mr Last at the scene". 33 Delaney DCJ was not satisfied that Ms Richards, from her own recollection, could provide evidence of the registration number of the vehicle that struck her vehicle. His Honour made no finding whatever concerning the evidence of Mr Last. The learned judge appears, nevertheless, to have accepted that the offending vehicle was a blue Ford Falcon and there was powerful and uncontradicted evidence to that effect. 34 If Mr Busbridge were the driver of the offending vehicle, it would give the lie to his denial that he was involved in any collision on 18 July 1996 with Ms Richards' vehicle. Further, there was nothing to suggest that, on that date, he was driving a blue Ford Falcon that did not have QKR 928 as its registration number. Apart from being entirely speculative and contrary to Mr Busbridge's testimony, the proposition that Mr Busbridge collided with Ms Richards' vehicle while driving a blue Ford Falcon that was not the blue Ford Falcon identified by her (and which did not have the letters and numbers on its registration plate identified by Mr Last) is improbable to the extent of being fanciful. 35 Generally, were it to be accepted that the vehicle that collided with Ms Richards' vehicle was a blue Ford Falcon, driven by Mr Busbridge, on the evidence the overwhelming inference would be that its registration number was QKR 928. That is to say, the overwhelming inference would be that the offending vehicle was the blue Ford Falcon of which, at the time of the collision, Mr Busbridge was the registered owner, and which was photographed by Ms Richards and purchased by Mr Wade. 36 On that basis, the vehicle would have to be regarded as having been properly identified for the purposes of s 28 of the Motor Accidents Act. 37 Delaney DCJ concluded: "Accordingly, irrespective of who the driver might have been, and although there might be the greatest suspicion that it was Mr Busbridge who was driving, I am not satisfied that the vehicle has been identified". 38 These words reveal a fundamental error in reasoning. It led to a failure on his Honour's part to make a finding as to whether Mr Busbridge was the driver of the vehicle. As I have attempted to demonstrate, such a finding was critical to the main question Delaney DCJ was called upon to resolve, namely, the identity of the vehicle that collided with Ms Richards' vehicle. The failure to make such a finding on the evidence available meant that the trial was not decided according to law. 39 As I have mentioned, the question whether Mr Busbridge was the driver (and, therefore, whether the vehicle was properly identified), depends for its resolution, at least to a degree, on the credibility of Mr Busbridge and Mr Last. This Court, not having seen the witnesses, is not in a position to make such a finding. Accordingly, this Court cannot accede to the Nominal Defendant's claim that a verdict and judgment be entered in favour of Ms Richards against Mr Busbridge. 40 During argument on the appeal, counsel for the Nominal Defendant, recognising the difficulties that would arise from the fact that this Court would not be in a position to make the necessary credibility findings, applied for an amendment to the notice of appeal so as to incorporate an order granting a new trial. The Court indicated that it would decide this application in the course of giving its reasons for judgment. 41 But for the situation of Ms Richards, I would have had no hesitation in proposing that the application for the amendment be granted and a new trial be ordered. Ms Richards' involvement, however, puts a different complexion on the issue. 42 Ms Richards had no notice of the proposed amendment. Her omission to appear at the appeal may well have been predicated on the belief that, in accordance with the notice of appeal in its unamended form, she would not be prejudiced in any way should the Nominal Defendant succeed and obtain the relief claimed by it. In other words, her decision not to appear was presumably made on the basis that, should the Nominal Defendant succeed, the only consequence for her would be that Mr Busbridge would be substituted as judgment debtor for the Nominal Defendant. 43 But, were the amendment to be allowed and a new trial ordered, there is the potential for Ms Richards to be prejudiced. It may be that, in theory, Mr Busbridge could (and would) argue that even if he were the driver, he was not negligent and therefore not liable to Ms Richards for her damages. Counsel for Mr Busbridge has indicated that the quantum of damages would be contested afresh by Mr Busbridge, and it is possible that, if held to be liable, Mr Busbridge will be ordered to pay Ms Richards a sum less than the judgment sum ordered by Delaney DCJ. 44 In the circumstances, I propose that, at this stage, no order be made in regard to the application for the amendment to the notice of appeal or the appeal, and the Nominal Defendant be ordered to re-list the appeal after having given notice of the application for the amendment to Ms Richards and serving a copy of these reasons upon her. At the resumed hearing, the application for the amendment will be determined and argument can take place in Ms Richards' presence as to the orders that should be made in regard to the resolution of the appeal (including orders, if any, relating to restitution of any monies paid, pending the new trial) in the light of these reasons. There seems to be good reason for the parties to agree on the orders to be made. If they are unable to agree they should bring in short minutes of orders within 21 days. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.